The only question we deem it necessary to consider is whether the recovery in this action can be upheld when there was neither allegation nor proof that the plaintiff sustained any damage because of the defendant’s failure to perform its contract. The defendant’s contract was that it would pay the amount realized from an assessment of its members, not exceeding $1,000. Thus the measure of the defendant’s liability was the sum which would have been realized from such an assessment, if made, unless it exceeded such limitation. With no allegation or proof of the amount which would have been realized upon such an assessment, or that any amount would have been realized, it is difficult to see how the verdict in this case can be sustained. While it has been held in a number of cases that an action at law can be maintained upon such a contract, still the same cases are to the effect that in such an action, before the plaintiff can recover, he must prove facts sufficient to enable the jury to compute the amount due thereon. O'Brien v. Society, 4 N. Y. Supp. 275, affirmed 22 N. E. Rep. 954, 46 Hun, 426; Freeman v. Society, 42 Hun, 253; Fulmer v. Association, 12 N. Y. St. Rep. 347; Hankinson v. Page, 12 Civ. Proc. R. 279; Peck v. Association, 5 N. Y. Supp. 215; Fitzgerald v. Association, Id. 837; Darrow v. Society, 22 N. E. Rep. 1093. As there was no such proof in this case, we think the verdict was not sustained by the evidence, and that the court erred in denying the defendant’s motion for a new trial. Judgment and order reversed, and a new trial granted, with costs to abide the event.
Merwin, J., concurs.